Disputes – Lesson 7

[Rabbi Michael Abraham] There’s one more kind of supplement that doesn’t really touch directly on our topic, but it was originally planned for Holocaust Remembrance Day. But since we already touched on it last time — I’ll just present the context — I spoke about the question of how disputes are created. And I said that disputes are the product of circumstances, outlooks, influences on the people who disagree, or on the sages who disagree. And from there I moved on to speak a bit about the significance of the influence of circumstances and environment on halakhic ruling and interpretation. I said that in the end there are people who see this negatively from both directions. Those who criticize the reliability of Jewish law or the authority of the decisors say that basically we see they’re human beings, and each one is basically doing what he’s programmed, let’s call it, to do. And the defenders say, what are you talking about — they’re ministering angels, they aren’t influenced by circumstances at all. What both sides share is the assumption that if there is influence from circumstances, then somehow that invalidates the result. What I argued was that this is not true. A person is always shaped by the landscape of his birthplace, and he is the sum total of the… he also includes the sum total of the influences on him, his tendencies, his worldview, and his basic assumptions, and that’s perfectly fine. Meaning, on the principled level, the fact that Jewish law is also a product of influences and not only of some detached, angelic judgment — whatever you want to call it — that’s perfectly fine. The Torah was not given to ministering angels. That’s one side of it. On the other hand, I spoke toward the end — or not at the end but just before the end — about the fact that from my perspective it doesn’t matter how the circumstances gave birth to the result. Because if you take this all the way, this conception that circumstances generate the result, then it basically comes out that there are no halakhic disputes at all. Because I spoke about the dispute between Tosafot and Maimonides, or the sages of Spain generally, regarding sanctifying God’s name, and people attribute it to the fact that they lived during the Crusades — there was pressure, there was a need to fortify the walls, to defend against external threats, and therefore they were very stringent in the laws of sanctifying God’s name, while the sages of Spain were more relaxed. Now that explanation sounds very plausible. I argued that that’s perfectly fine. It’s perfectly fine, but on the other hand I don’t relate to it when I conduct the halakhic discussion. When I conduct the halakhic discussion, for me this is what in philosophy of science is called the context of discovery, and I’m dealing with the context of justification. And from my perspective, after Tosafot created their own position and Maimonides created his own position, now I discuss those positions in themselves; I don’t care where or how they were born. And not because they weren’t born from circumstances — they were also born because of circumstances — but that doesn’t matter. The circumstances are only the context within which this approach was formed. That’s the context of discovery: that’s how they discovered this approach. But after it was discovered, from my point of view this is a halakhic approach, and I discuss it as if Tosafot and Maimonides are sitting with me around a round table, and let’s see who is more plausible and who is less plausible and who stands the test of the Talmudic passages, and I decide one way or the other just as I do in any other topic. Whereas from the standpoint of the extreme scholarly perspective, what should really come out is that there is no disagreement at all. If today I had to decide what to do — whether to conduct myself like Tosafot or like Maimonides — then apparently what I should do is examine the circumstances in which I operate. If they are similar to those of Tosafot, then I should do what they said, because under those circumstances that is the halakhic answer; Maimonides too, if he were in those circumstances, would rule like them. And if I operate in circumstances like those of Maimonides, then the opposite — I should go like Maimonides, because even Tosafot, had they lived there, would really have ruled like Maimonides. And then this completely empties the differences of content and leaves Jewish law as basically one universal law that simply changes according to circumstances, but with no room for different positions. Whereas the accepted assumption in traditional yeshiva-style halakhic thinking, in traditional thought, is that there are disputes and those disputes have meaning. And the fact that this was created in different circumstances is true — unlike the apologists who say it isn’t true. It’s true, but it isn’t important, because the circumstances helped this thing come into being, but now it stands on its own. I brought examples of this from Gilat’s book on the Sabbath nowadays being rabbinic, and other things of that sort, that many times circumstances can generate a result, but after they generate the result, from my point of view what stands before me is the result as a halakhic approach, and now I discuss it just as I discuss anything else, independently of the circumstances. That reminds me that earlier I heard — there was something on Facebook, something I don’t remember, something with women. Women’s Torah study? Members of Knesset? Yes. So here in Lod too I heard some lecture by a woman, and she spoke about people with blemishes. It was in the Torah portion of Emor, where they spoke about priests with physical blemishes. And the question was what this means for us today, when we don’t discriminate against people with disabilities, and how can it be that they are not assigned a role in the Temple — that was then — but also in the synagogue, to give the priestly blessing, and various things of that sort. Fine, so she spoke — it doesn’t matter — about different aspects of this issue. The background to the discussion — afterward I heard that in another place too they had this, they spoke about the same thing with the same sources. It seems to me they all got equipped from the same place with some set of sources and just… fine, never mind. In any case, the context in which this issue came up — later someone showed me, sent me two files — there was a controversy. Rabbi Beni Lau wrote some article on this issue. Already years ago he wrote some article on this issue, how can it be and it cannot be that we discriminate against people with disabilities, and things of that sort. And Rabbi Lichtenstein got very angry — his rabbi, because he studied with him — got very angry at him and said, what do you mean, this is the Jewish law. What does it mean “it cannot be”? You are committed to the Jewish law; this is what the Jewish law says. And that was really the context from which this whole business emerged. Now when you look at it, this is exactly — I wanted to bring this because it’s exactly what we’re talking about here. Because this argument could have been made in two ways. And I’ve spoken about this in the past as well in several contexts. I once wrote an article about the status of the convert in Jewish law. And I wrote there that basically, after all, a convert may not be appointed to any position of authority in Israel. This comes from the Talmud; that’s how all the decisors rule. Not a king, not even a distributor of water. Meaning, not even a public official in charge of distributing water or something like that. That sounds problematic, certainly to modern ears; I think in general too, although in their time as well it sounded problematic. So I wrote an article in which I showed that this law — and there is evidence for it from Maimonides and from the Talmud — that this law is the result of an improper attitude toward converts, an improper social attitude toward converts. Meaning, since people tended to look down on a convert, to remind him of his origin, where he came from — after all, even about King David, Ruth, there are Talmudic passages about this, Rashi, in all kinds of places — this was very common. So it’s not that the Jewish law encourages this — on the contrary, it says “you shall not wrong the convert”; it is forbidden to do this, forbidden to remind a convert of his past. But the world did behave that way. Not for nothing did the Torah prohibit it, because apparently it was indeed common practice at that time. And because of that, what I argued is that the prohibition on appointing a convert to authority is functional. Meaning, he simply won’t succeed in fulfilling his role; people won’t listen to him, he has no authority, he is seen by the public as inferior. But if that is really so, then in a place where society is corrected and people relate to the convert as one ought to relate to him, as one of us — and even more so, since the Torah imposes various obligations even beyond what applies to an ordinary Jew — in such a place all these prohibitions are nullified. And in such a place one can appoint him with no problem at all. Now I sent this article to Techumin. They agreed with all my arguments but did not agree to publish it. They didn’t agree to publish it because they were afraid it would bring the problem to the surface. Meaning, people would see that the Jewish law is discriminating against converts, and maybe they would buy the explanations or maybe they wouldn’t buy the explanations, but leave it alone, don’t stir it up, let people not hear about it. I told them, listen, you’re living in the 19th century. This issue is going to come up. If not now, then in two weeks. And when it comes up in two weeks, whether you like it or not, when it comes up in two weeks, then you’ll write articles explaining why it’s really not relevant, and nobody will buy it because it will sound apologetic. Instead, put the facts on the table, the good and the bad together. Meaning, raise the problem honestly and present the evidence — and there’s plenty of evidence for this, it’s not some apologetic argument — and enough evidence that this is indeed the case, and show that it isn’t true. That’s far more reasonable. They weren’t convinced and didn’t publish it; in the end I published it elsewhere. But the point is that this is apparently a very similar argument to what we’re talking about here regarding people with blemishes. Only one point is very important to notice: you have to establish the claim that the prohibitions from the outset regarding people with blemishes really did stem from some social status or another. If you can show that, and their social status today is different, then one can make an argument for change, and I don’t think Rabbi Lichtenstein would have said anything against that

[Speaker B] point.

[Rabbi Michael Abraham] He would argue, but he wouldn’t see that as illegitimate. Meaning, he would argue about the evidence — whether the evidence is good or not good. Right? But the point is that the way Beni Lau presented it was not like that. He argued that it just doesn’t fit. Meaning, it can’t be that today we discriminate against people with blemishes. That is an extra-halakhic argument. Because who says that the Jewish law — first of all, who says that the Jewish law discriminates against people with blemishes? I think there are other reasons. Who says that the Jewish law — meaning, you didn’t show that the Jewish law regarding people with blemishes stems from something that doesn’t exist today. So what are you saying? That this is what the Jewish law says, but it cannot be that we carry it out because today it sounds bad? That is what Rabbi Lichtenstein rebelled against. Meaning, he said: if that’s what the Jewish law says, then that’s what it says. But if you make the kind of argument I made there regarding converts, what’s the problem? That’s a completely legitimate argument. Again, you can argue about the evidence maybe, and then maybe it will come out no; you can argue about the evidence, but you can’t argue about the legitimacy of that form of argument. It’s an internal halakhic argument, not an external one. You’re claiming from within the Jewish law that it says the opposite. In fact, I claim that someone who doesn’t act that way is a halakhic offender — not a moral, ethical, human offender in the sense people think today. A halakhic offender, because the Jewish law itself tells us that this is how we are supposed to act. Whereas he claimed that in essence you are observing the Jewish law, only you are a moral or social offender or are desecrating God’s name — people speak about it as desecration of God’s name, whatever. That is an extra-halakhic argument. In extreme cases, by the way, that too has a place. Meaning, desecration of God’s name and things like that are sometimes grounds for changing the Jewish law because of problems of desecration of God’s name. Fine, that can be a factor, not in this context in my opinion, but it can be true — though really only in extreme cases. In this context I don’t think it’s relevant. Therefore as an extra-halakhic argument it isn’t relevant. But here, if you raise an internal halakhic argument, that’s perfectly fine. And what does this really mean? It means that Jewish law — and now I return to our topic — is indeed a product of circumstances. But in this case it’s not that the circumstances generated the Jewish law; rather, under those circumstances that really was the correct Jewish law. And under today’s circumstances, because it was a function of the circumstances, under today’s circumstances it is different. Here, in fact, I do adopt the scholarly conception. Because in the scholarly conception, what do they say? If you live under the circumstances of — scholars will say — if you live under the circumstances of France, of the Crusades, then rule like Tosafot. And if you live under circumstances like those that prevailed in Spain, rule like Maimonides. That is basically what I am saying here. Only here I claim that I’m not doing this merely because of the context of discovery; I’m doing it because of the context of justification. Meaning, I claim that in halakhic discourse I can show — that is, with halakhic evidence — that this really is a law stated specifically about certain circumstances, not merely that it was created because of the circumstances. The claim that the law was created because of the circumstances is not relevant to the halakhic argument. But the claim that the law is speaking specifically about such-and-such circumstances — if you can show that — that is a completely halakhic argument. And here the circumstances do enter into the halakhic discussion, and that is exactly what we saw at the point last time. Because what I said last time about halakhic rulings during the Holocaust, I basically argued that that really was the correct Jewish law for those extreme circumstances. And of course in other circumstances it isn’t relevant. Not that — in that context, really two things happened there. I said this last time too. On the one hand, the circumstances generated a halakhic approach that did not exist until then. For example, what Rabbi Gibraltar spoke about there regarding monetary law in the ghetto: that there is no ownership at all in the ghetto, and so on. So I think two things happened. On the one hand, the circumstances generated a halakhic approach. Someone who didn’t live in those extreme circumstances would never have imagined that this is what the Jewish law says about such circumstances. You don’t live there, you don’t examine the Jewish law under such circumstances, you don’t understand what such circumstances mean, so it would never occur to you that there is such a thing. And therefore you wouldn’t examine it, you wouldn’t find this law. In that sense, the circumstances generated Rabbi Gibraltar’s halakhic approach. But on the other hand — that’s one aspect, and in that sense I don’t care, because what generated the approach doesn’t interest me. On the other hand, of course what he says is correct and valid for those circumstances, and in that sense it is relevant. Meaning, I argue that there it really should enter the Shulchan Arukh. What he said should be entered into the Shulchan Arukh. Because now the Shulchan Arukh ought to state that under those extreme circumstances the Jewish law is such-and-such in Choshen Mishpat — for example, that the ordinary monetary laws do not apply.

[Speaker B] What you’re claiming — is that also in a Torah-level law? Meaning, if people with blemishes, say, is a Torah-level law, as opposed to converts…

[Rabbi Michael Abraham] No, no, also a convert.

[Speaker B] A convert is a Torah-level law?

[Rabbi Michael Abraham] Torah-level. Let’s look at the convert.

[Speaker B] When you come to appoint him to…

[Rabbi Michael Abraham] Yes, yes. After all, “From among your brothers shall you set a king over yourself” — your brothers, and not converts. And from kingship they derive the other positions.

[Speaker B] And I understand that the king is from the House of David.

[Rabbi Michael Abraham] No, no, not necessarily from the House of David. The House of David is another issue. It’s like Nachmanides in the Torah portion of Vayechi, who says that there is a prohibition on appointing priests as kings. He brings the Jerusalem Talmud: there is a prohibition — “the scepter shall not depart from Judah” — so he says there is a prohibition on appointing priests as kings, and that was the sin of the Hasmoneans, that they made themselves kings. What’s the novelty? After all, anyone not from the House of David — and priests are from the tribe of Levi — anyone not from the House of David is prohibited. So he said no, that’s violating two prohibitions. So if you appoint a Hasmonean priest as king, you violated two prohibitions. First, he is not from the House of David — and actually Nachmanides argues that this is not a prohibition at all, just violating the elder’s command. Jacob promised the kingship: “the scepter shall not depart from Judah.” From the wording of Nachmanides it seems this is not a prohibition, just obedience to the testament of our forefather Jacob. And besides that — and this is an actual prohibition — which is derived by juxtaposition in Deuteronomy, appointing priests as kings. So you violate two prohibitions. If you appoint priests — if you appoint someone from the tribe of Zebulun, you’ve violated the prohibition that he is not from the House of David. If you appointed him from the tribe of Levi, you violated two prohibitions. So here too it’s the same. When you appoint a convert as king, beyond the prohibition that he is not from the House of David, you also violate the prohibition that he is a convert. Beyond that, what about a king of the Kingdom of Israel, not the Kingdom of Judah? There too there are no kings from the House of David. Even there you would still violate this prohibition; there too it is forbidden to appoint a convert.

[Speaker B] If you get into “fear God and live” — are you claiming this applies there as well? Aren’t you entering into the dispute of Rabbi Shimon over whether we derive the reason of the verse?

[Rabbi Michael Abraham] That’s a hard question. It’s a hard question. On the face of it, here we are deriving the reason of the verse. And I’ll answer you the way they answer in yeshivot: that this is a definition and not a reason. And the question of what distinguishes a definition from a reason — that’s the million-dollar question.

[Speaker B] What distinguishes a definition from a reason?

[Rabbi Michael Abraham] And what I’m basically claiming is that I’m not entering into the reason for the law — why the law is this way. I’m stating its definition. What does the law say? It says that under these circumstances it is this way, and under those circumstances it is that way. What’s the reason? I don’t know. Of course this definition is derived from the reason — meaning, whenever people say this is a definition and not a reason, the reason always… Take Rif at the beginning of Bava Kamma. He explains that tooth and foot are exempt in the public domain. Afterward Maimonides responds to him and to others, that tooth and foot are exempt in the public domain because it is normal for people to walk in the public domain with their animals. And someone who leaves something there should guard his property, because he ought to know that people walk in the public domain. And the practical difference concerns a long plank that is lying in the public domain with its end extending into private property, and the animal walked in the public domain and caused damage in the private domain. He claims that it would still be exempt. Why? Because at the end of the day the animal walked in the public domain, and it had the right to walk there, therefore I am exempt.

[Speaker C] But according to the reason that doesn’t work out. What? According to the reason it doesn’t work out. Why? Because according to the reason, the whole issue is only in the public domain.

[Rabbi Michael Abraham] But the damage was in the private domain. So it depends which side of the coin you’re looking at. Exactly.

[Speaker C] So he says that this is the definition.

[Rabbi Michael Abraham] From the perspective of the person walking with the animal, he was fine — what do you want from him? From the perspective of the owner of the produce, how can he guard it? You tell him, guard yourself. Fine, so these really are different formulations. Between Maimonides and Rif there are different formulations. The Tzafnat Pa’aneach brings this up. In the dispute between Tosafot and Rif. Just a second — I only want to say that there too, meaning Rif derives the reason of the verse. Maharshal once pointed this out to him. Rif derives the reason of the verse, and what did you say? The Torah says exempt in the public domain — exempt. Why are you deriving the reason of the verse? So in yeshivot they answer: no, this is a definition and not a reason. And the definition is that a person is allowed to walk in the public domain. Fine, but that definition is derived from a reason. Now I just want to note, this whole issue of deriving the reason of the verse is a topic in itself. I’m not going into it now. It’s a topic for a lecture — really for several lectures. We spoke about it once; maybe we’ll talk about it again sometime. It really is a topic. What? A broad topic. Yes, maybe we’ll talk about that sometime too. So the claim — yes, that’s the Chazon Ish who says that we ask about the what and not the why. There’s no such thing, nonsense. There is no what without a why. The what is derived from the why. How do you know the what? You know the what when you understand the why. Okay? But one important point has to be understood. When we learn this from the straightforward meaning of the verse, then this really is a difficult question. But if we learn it from a rabbinic derivation, then no. There is no question at all of deriving the reason of the verse in rabbinic derivations. Why? Two reasons. Once I thought of one reason; now I read in a new book by Rabbi Shimon Shkop that he gives another interesting reason.

[Speaker C] That would change the derivation. If the derivation depends on a defined tradition that he received. A verbal analogy.

[Rabbi Michael Abraham] A verbal analogy too really depends on tradition.

[Speaker C] Already Nachmanides and all his students say that one cannot infer a verbal analogy on one’s own.

[Rabbi Michael Abraham] It’s written, but Nachmanides and all his students say that one can. You just need some hint from tradition. There is plenty of evidence for this in the Talmud, in the dispute about verbal analogy and how it works. Nachmanides comments on it — look in the Talmudic Encyclopedia under the entry “verbal analogy” — he explains there that even a verbal analogy a person can infer on his own. You just need some support. There is some tradition saying that between these two words one makes a verbal analogy, or that this law came from a verbal analogy and you’re looking for where from. You need some help, because otherwise you really can say many baseless things. In any case, for our purposes, what I want to say is that if you learn something from a rabbinic derivation, then the question of deriving the reason of the verse does not exist. Why? Two reasons. First, the question of deriving the reason of the verse arises where you want to base the law only on the reason. No — we do not derive the reason of the verse; we look at what is written, not why. But where you have some textual assistance, where you manage to show this through interpretation of the verse or through a rabbinic derivation from the verse, then you are not relying on the reason. You have textual assistance. The reason only comes to strengthen or support, but in the end you are not relying only on the reason. Rather, you have support in the wording of the verse or in some extra word that is expounded or something like that. That has nothing to do with deriving the reason of the verse. There is a very nice exercise there in the book; he explains it very well. I once thought of it in a somewhat different formulation. It’s related, a bit different, and he also talks about it there a lot if you want. It’s an excellent book, by the way — I highly recommend it — “And His Taste in His Mouth” by Dr. Shalom Rosenberg. The other formulation basically says that in a rabbinic derivation, reason is always involved. There is no derivation without reason. There is not one derivation in the world that was made without resorting to reason. “You shall fear the Lord your God” — fine? So the word “et” comes to include. Include what? Clouds? Chairs? Seas? What is it including? I don’t know — the verse doesn’t say what. You activate your reasoning and say: what does this come to include? The most plausible or the least implausible thing is Torah scholars, right? A verbal analogy of “lah lah” from woman. There is a verbal analogy. Now you make a verbal analogy — fine, so now let’s write woman with an ayin, like slave, and maybe a woman can be enslaved like a slave, as the property of her husband. But that is not halakhically correct. Why? Because we use our heads and ask ourselves what really is similar between a slave and a woman and what really can be inferred between a slave and a woman, and on that basis we apply the verbal analogy. Regarding something else we won’t apply it, even though in verbal analogy there is even a rule that there is no such thing as a partial verbal analogy. And that itself is a dispute between Rashbam and Tosafot over what “partial” means. Does it mean from A to B and not from B to A, or that all the laws of A have to transfer to B and not only some of the laws of A? But I’m talking about the second interpretation, which is more accepted. In short, there is no derivation in the world — the hermeneutical principles by which the Torah is interpreted are always some textual trigger to make a derivation. But what to do with that trigger is always a matter of reasoning. You compare between two things — in what respect are you comparing them? When you include something, what exactly are you including? That’s always open. According to what do you decide? According to reason, right? And where I am making a derivation, there is no question of deriving the reason of the verse. Say, “From among your brothers shall you set a king over yourself” — here this is an interesting question. Is it from the simple meaning, that “your brothers” means your brothers and not a convert, or is it a rabbinic derivation: your brothers and not a convert? It may be that only the derivation says that “your brothers” comes to exclude the convert, because there was some line of reasoning here to make it an ordinary Jew and not a convert. For example, disqualifying women from testimony: “And the two men who have the dispute shall stand before the Lord” — men and not women. You tear your hair out when you see this. The Torah is full of references to men, and Scripture equated woman with man for all punishments in the Torah. The Torah speaks in the ordinary language of the world; it spoke about men, but it intended women too. So what is “men and not women”? Clearly the sages had some reasoning that led them to think women should be disqualified from testimony, and therefore they expounded “men and not women.” And this is even stronger than what I said before. Without that reasoning they wouldn’t have expounded anything. “You shall fear the Lord your God” — you have to include something, and the reasoning tells you what to include. Here I think they wouldn’t have expounded anything at all without the reasoning, because this derivation is simply outrageous in so many respects. “And the two men who have the dispute shall stand” — it’s just extremely strange. But I say this only to show that in derivations — what was the reasoning? The reasoning was that women are not supposed to testify: “the dignity of the king’s daughter is inward,” women are light-minded, I don’t know, various things like that. Of course, one can now discuss what happens today,

[Speaker C] maybe today that reasoning would change and we’d have to validate them.

[Rabbi Michael Abraham] Fine, that needs to be discussed, and we’d have to see carefully what the reasoning really is, and the Talmud says a bit about this — whether it really is that women are light-minded or not light-minded; the Talmud does discuss this issue a bit. In any case, the point is that when you’re talking about rabbinic derivations, then there is no question of deriving the reason of the verse. I’m returning to your question. There is no question of deriving the reason of the verse, because in derivations they are always based on some reason. So once it is based on that reason, then let’s see where the reason applies and where it doesn’t apply. And when people say “we do not derive the reason of the verse,” that applies to laws that are written explicitly in the Torah, to interpretation from the straightforward meaning, not to rabbinic derivations, not to things where we have textual assistance for this halakhic result.

[Speaker B] For example, “you shall not take a widow’s garment as collateral,” right?

[Rabbi Michael Abraham] It says in the verse, "You shall not take a widow's garment as collateral." Now they ask: Rabbi Shimon and Rabbi Yehuda disagree—does this include even a wealthy widow, or only a poor widow? In the Torah there’s no hint; it says, "You shall not take a widow's garment as collateral"—any widow. Rabbi Yehuda says: any widow. We do not expound the reason for the verse; this is the famous example people bring. Rabbi Shimon says: we do expound the reason for the verse. A widow… because here you’re going only with the reason. You’re not bringing some midrashic derivation or wording in the Torah that shows it’s only a poor widow; rather, you’re saying: I just think to myself, what is the reason for the prohibition? Because she is a poor widow and you have to return the collateral to her at night, and so on. To rely only on the reason—that is the dispute whether we do or do not expound the reason for the verse. Or: "He shall not take many wives for himself." "He shall not take many wives for himself"—there too. Does that include righteous women too, even someone like Abigail, or not? If I expound the reason for the verse, then righteous women are no problem—women who will not turn his heart away. But if I do not expound the reason for the verse, then no. And again, why? Because you have no midrashic or textual support for that derivation, so that is a dispute about the reason of the verse. In a place where the derivation yields that halakhic result, the fact that there is reasoning behind it does not interfere—on the contrary, that’s how derivation works. A derivation is always based on reasoning. So they asked: then why do you need the derivation if there is reasoning? Precisely because of this—because we do not expound the reason for the verse. If I had only the reasoning, I could not rely on it; that is why I need the derivation. The derivation comes to tell me: here, go with the reason. Or the reason by itself is not strong enough; there are various possibilities as to why the derivation is needed. So I return to our topic: basically the claim is that in the case of the Holocaust that we discussed last time, both things happen. First, the circumstances generated the halakhic result. Second, after that happened, I do not ignore how they reached that result. Why? Because it is also correct to say there that the result speaks only about those circumstances—it applies only to extreme circumstances. And in other circumstances it is in fact not true that there are no monetary laws; Rabbi Giberter did not mean to say that, unlike Maimonides and Tosafot regarding sanctifying God's name. There too, Rabbi Giberter, who spoke about extreme circumstances and said there is no ownership there, did not mean that the extreme circumstances led him to some communist idea that there is no more ownership in the world even in other circumstances. He said: in these particular circumstances there is no ownership. So there he himself says: I am speaking only about these circumstances and not others, and in other circumstances there will be a different law. Therefore there is no problem at all. There I adopt the sort of research-oriented approach I mentioned earlier, because here it really is correct to do that. Because here the circumstances are not playing only the role of what brought us to think this way; Jewish law speaks only about these circumstances.

[Speaker B] So what would be written in the Shulchan Arukh?

[Rabbi Michael Abraham] In the Shulchan Arukh it would say: if you are in extreme circumstances—however you define them—there is no ownership. An appended סעיף to Choshen Mishpat: everything stated until this point is only in non-extreme circumstances; in extreme circumstances nothing is relevant, you can erase Choshen Mishpat. Almost all of Choshen Mishpat. There are matters of life and death, there are other things, but with regard to property you can erase it. Okay? Fine, all right, one can argue about that; that’s what I claim. But I’m just trying to bring the example—we talked about it last time—that there the two mechanisms converge in one place. Also the mechanism that the circumstances reveal to you an aspect you would not have discovered without them—they also play the role of the context of discovery—but there the circumstances also play the role of the context of delimitation. There the circumstances also tell me that under these circumstances this is the correct way to act, and under other circumstances not, and therefore that too would enter the Shulchan Arukh. Now basically this means—and from there I went on to talk a bit—that there are situations in which, in extreme situations, that’s what I said briefly at the end, in very extreme situations a halakhic decisor who did not experience it cannot rule about them. A decisor who is not himself in that situation, or does not deeply understand what such a situation means, cannot rule. And as I mentioned that series of articles in Yated Ne’eman—that’s what got me thinking about the Warsaw Ghetto, the Kovno Ghetto—and there was some response there from some person, a rabbi who deals with monetary law, who said: this is of course not true; surely he didn’t have books, so we can excuse him, and so on, but it’s not true. In my view he was talking nonsense there. But for me the point is that when you are not living the situation, you operate with the regular monetary-law glasses, and with the regular monetary-law glasses it really is not true. When you do not understand the situation, you cannot rule about it. You do not understand what it means. I brought this example, right? Two people falling in an elevator that is about to crash or something like that. One says to the other, give me the pen; he doesn’t want to, so I took it from him—is that theft? Am I forbidden to take his pen? In another second we’re both crashing with the pen and there won’t be any trace left of us. So what, are there theft laws and monetary laws here and all that? It doesn’t sound right to me. But again, from this comfortable chair I can say: no, what are you talking about, theft is theft, theft is dancing in everyone’s head, you have to be extremely careful and stringent in the laws of theft. Someone who lives inside the situation and understands realizes that this is nonsense; that in such a situation there is no such thing as monetary law. What theft? Leave that nonsense. I take his pen and write what I want. What, you’re guarding that pen as if… okay? So for that you really have to understand the situation, to experience it—that is, to truly understand what it means. I brought more examples. What happens with rulings regarding women singing? All kinds of things—I mentioned this, I think, no? Rabbis who say that women singing is forbidden. If you say that it is categorically forbidden, fine: it is forbidden because it is a complete prohibition, because "a woman's voice is nakedness," and that’s it; it has nothing to do with circumstances or what it does or what its significance is—fine, that’s a ruling. But the simple approach in Jewish law is not like that. The simple approach is that it is prohibited because it arouses improper thoughts. It says in the Talmud in several places: "A handbreadth of a woman is nakedness," "a woman's leg," "a woman's hair," things like that. So it arouses thoughts. Now here this is a factual question: when you go to a Chava Alberstein concert, does it actually arouse thoughts in you? I don’t know— not for me. I have to confess—maybe I’m confessing here to some defect in the desire department—but no, really not. I would go there because… I haven’t been there, but I would go, because I like her singing, it’s simply beautiful. She sings beautifully. I don’t think it has any sexual connotation. There may be performances that do have sexual connotations; fine, that’s a different discussion. But I’m saying: in order to understand this, you need to hear women singing, understand in what context it is perceived today, how people relate to it. In ordinary, conventional performances by normal female singers—not very sexualized things—nobody, in my opinion, even thinks of these things. That is not the point; it is not the context there at all. Now someone who has not experienced this perhaps does not understand it. As far as he is concerned, it is written in the Talmud that it arouses thoughts, and he is certain that everyone goes there only because of the sexual fantasies aroused in them by hearing the singing. He has not experienced it, so he cannot rule about it. Again, this is no longer an extreme situation like the Holocaust, but it is still a situation where, if I believe you are an upright Jew, then if you prohibit it you certainly have never heard women singing. You do not know what it does. You do not know the context of this thing. If you do not know what it does, you cannot rule about it. You cannot say that it is forbidden. You do not know. You need to understand what it does to people in order to decide whether it is permitted or forbidden. Therefore, when the situation is very foreign to you—even if it is not very extreme like the Holocaust, but it is a completely different world from yours, totally foreign to you—then in such a place you cannot decide about it. You cannot decide what it does to you, or to people like you who live more or less in the same world, maybe. But you cannot decide what it does to other people. The same thing with all kinds of egalitarian prayer groups. Various rabbis express opinions about this matter. I think that is not right. In halakhic contexts, what is halakhically forbidden is forbidden, fine. But in a place where you are expressing an opinion about what is appropriate and what is not appropriate, you need to know what such a community thinks, what it does to that community, what it means if you do it and if you don’t do it, and only then can you make a real decision. It does not make sense that someone who does not live in that world at all should rule for them on these issues. Again I say: if there is something categorically forbidden, unrelated to what it does or does not do for you, fine, then maybe. But in places where that is not the case, I think one must be careful with this kind of halakhic ruling.

[Speaker C] Now, I was at the Holocaust Remembrance Day ceremony, and the two chief rabbis were there, and there was a lot of women singing.

[Rabbi Michael Abraham] That always happens; people have already brought it up. And they said, look, we can’t, and this and that—it’s like what they permitted for Rabbi Yehoshua ben Chananiah.

[Speaker C] No, but that means they understand what women singing is, and they still kept the ruling.

[Rabbi Michael Abraham] Yes, but you understand that they forbid it because of considerations of… they know the sources. They would not dare say that it simply does not apply; that sounds Reform. Their motivations.

[Speaker C] I don’t think they attack the essence of the matter. That is, I don’t think they attack the issue of whether women singing is forbidden or permitted, or say egalitarian prayer groups—whether that is forbidden or permitted. They are not coming to discuss that at all. The way I see it, from the society I come from, they look at the motivations of the people involved, that is, those who make these prayer groups—

[Rabbi Michael Abraham] Egalitarian ones—where it comes from, from what direction it comes, and things like that.

[Speaker C] If you talked about egalitarian prayer groups where everyone is righteous and there’s no radicalism here, I would divide it in two.

[Rabbi Michael Abraham] First, they do not know their motivations because they do not know them. I happened, by chance, to think exactly that way until I came to a society of that type and encountered things I had not expected.

[Speaker C] Okay, I didn’t say they know them, but what they attack, they attack that issue.

[Rabbi Michael Abraham] It does not matter; my response is the same. You are talking about something you do not understand. You are talking about something they do not understand, so what are you saying? I don’t agree with that either. Second, I do not agree—even if you do know, I still do not agree. Because motivations are not a halakhic consideration. When someone goes up to the Torah because he is motivated by wanting to be an important person, will you prevent him from going up to the Torah because of that? Since when do we inspect motivations? If it is permitted, it is permitted; if it is forbidden, it is forbidden. What are motivations? Motivations are not a halakhic consideration. You can enact decrees because of motivations.

[Speaker C] You can say: I am decreeing.

[Rabbi Michael Abraham] But there is no one who can enact decrees. There is no one authorized to enact decrees. Those same rabbis themselves will tell you on Independence Day that today there is no one who can institute ordinances, right? And enact decrees. So suddenly here they will enact decrees? Including the telephone, by the way. What is this? There are decrees here—an object-based prohibition, not a warning. If you warn that it is dangerous and so on, fine, one can discuss that. But decrees, as if on the object itself—from where is the authority to enact decrees? Suddenly this authority was born after they explain to us that there is no authority to do anything—not even things that in principle could have been done. So what suddenly happened that now it can be done? I’m saying: what happens is that because people think there are motivations here that seem problematic to them—and even assuming they are right, and I’m not… it is not always so; sometimes yes, but not always so—I do not think motivations are a relevant consideration. Motivations are fine. I have all my motivations. I give charity so that my son will live; I give charity in order to appear generous. So what, because of that it is forbidden to accept charity from me? Is there some prohibition? What does that have to do with anything? One person acts for its own sake, another not for its own sake. Of course, the one who acts for its own sake is better, but that does not mean that what is done not for its own sake is forbidden or invalid. One has to decide: if there is a halakhic prohibition, then it is forbidden regardless of motivations; and if there is no halakhic prohibition, then again it is permitted regardless of motivations. True, you can say: I do not recommend it, because I think it is a problematic process. Fine, say that, and we’ll see whether people accept it or not. The problem is that people are afraid they will not be listened to if they say it that way. If they say it is forbidden, people will listen. And here we pay a very high price, because the public loses trust in rulings. When the public eventually understands that this is not really a halakhic prohibition, then it loses trust even where it really is a halakhic prohibition. And they no longer believe you when you say it. It is like Eve and the serpent, right? She told the serpent that the Holy One, blessed be He, said not to touch, whereas in fact the Holy One, blessed be He, said not to eat. And what happened? The serpent pushed her. Rashi on the Torah—Rashi says the serpent pushed her: see, you touched it and nothing happened; now eat too. When you present something permitted as if it were part of something forbidden so that people will listen to you, there is a price. Because if it turns out that this thing is not forbidden, then the next time you say about something that really is forbidden that it is forbidden, they will not accept that either. And that is what is happening today, by the way. The same thing with texting, right? Exactly. Texting on the Sabbath—what is that? Where does this phenomenon come from? Simply a lack of familiarity with extreme conditions. But why specifically text messages? Sometimes driving on the Sabbath is more distracting than not driving, more distracting than texting. Why specifically texting? I’ll tell you why. Because there is no prohibition. If you ask halakhic decisors whether texting on the Sabbath is forbidden, you will not get an answer. I have spoken to several people. There is no answer. I have some ideas one way or another, but it is very, very shaky, very loose, yes—not grounded. The prohibition of using a smartphone on the Sabbath.

[Speaker C] So people—

[Rabbi Michael Abraham] People feel that they are basically being sold nonsense. That it is not really forbidden. Again, I’m no great genius and all those people aren’t either, but sometimes there is a feeling that they tell you something is forbidden because they do not want you to do it. It harms the character of the Sabbath, the weekday schedule, and other arguments of that kind. These are very dubious arguments. People do not buy them. Now, if you were to say that, maybe people actually would accept it more. But instead they anchor it in a prohibition, and then leave me alone—that does not build anything. Swiping on a touch screen—don’t tell me that is building or kindling. Now again, sometimes these are ignoramuses because they do not understand the definitions of building and kindling, but many times it is just a healthy instinct. People do not accept it. I think this is part of the reason for texting on the Sabbath. It is not just that roughness and edge-walking; there is also a sense that we are not buying what they are telling us is forbidden. Explain to me on what basis it is forbidden. Go ask halakhic decisors, you’ll see—there are decisors who explicitly permit it. Explicitly permit it. They do not panic over it. Other decisors say here and there: maybe causing something new to come into being, maybe certain rabbinic prohibitions that not all are ruled that way in practice, some basis of that kind, very dubious. I have an idea involving building according to the Chazon Ish, but you have to understand what building means. And again, it is a basis one can dispute. But it is not something very clear. I’m saying that sometimes the public has a healthy sense of when you are pulling the wool over its eyes. And even though most of them are ignoramuses and do not understand, yes? Fine—it is not because they learned the passage and understood that you are pulling the wool over their eyes, but there is a feeling that trust has been lost. That is, if you show me that this is black and this is white, this is the Sages, this is the Talmud, this is the Torah—I don’t know exactly what—many more people will accept it.

[Speaker B] Why did you latch onto text messages? All electricity is building or kindling.

[Rabbi Michael Abraham] No, no—with text messages it is stronger. With electricity there is kindling in the form of an incandescent filament, for example; you can see that as kindling. That is not a far-fetched thing.

[Speaker B] Today with LED, today…

[Rabbi Michael Abraham] Okay, so LEDs already get closer to a smartphone. Fine, right, LEDs get closer to a smartphone, although there too there is—

[Speaker B] Causing something new to come into being; in a smartphone even that.

[Rabbi Michael Abraham] No, it is not exactly like turning on a lamp. I myself do not know exactly what is happening there, because that too is LEDs; I don’t know exactly. But it is a problematic business. Let’s not focus on this in depth; I myself don’t know exactly how it works.

[Speaker B] The moment you come, wake the device, wake the device—

[Rabbi Michael Abraham] Wake the device—lights come on.

[Speaker B] Wake the—

[Rabbi Michael Abraham] Device—that’s true, it changes the image, but the question is whether it turns something on and turns something off; what exactly happens there? On that I’m not—again, I’m not sufficiently expert in the matter. I read a bit and spoke a bit with people. The prohibition is not clear at all. There are decisors who say that in case of doubt there is no prohibition. By the way, it seems to me that… no, actually I don’t remember—there was Rabbi Shlomo Zalman Auerbach with regard to a smartphone, I think, but he too has some statement in that direction. There are important decisors here. Fine, never mind, that’s by the way; I’m not getting into it now. The point is this: basically what happens is that there are extreme realities in which the rules of Jewish law change. When you understand what that means, then the rules of Jewish law change. Now, last time I wanted to bring this—let’s bring it now. There is a responsum here from the responsa collection From the Depths by Rabbi Ephraim Oshry. He himself was, I think, in the Kovno Ghetto—yes, he too was in the Kovno Ghetto—and he collected questions that people asked him during the Holocaust. After the Holocaust he gathered them into a responsa collection called From the Depths. Truly horrifying things, truly horrifying things. The halakhic engagement with these issues is a very powerful matter. Reading it is really learning for Holocaust Remembrance Day. In any case, in this responsum there is a point that from an outside perspective looks backwards. That is, with the rabbi there—this is why I brought it—with the rabbi, from outside it looks as though he is talking nonsense: what is this idea that there are no monetary laws in the ghetto? So I said that when you live the matter from the inside and understand the significance of things, you understand that there are no monetary laws in the ghetto. Here the picture is the opposite. When you look from outside, you say: what on earth do they want? Obviously everything is permitted—it is saving a life. What is the question? You’ll see what kind of discussion he has here about things on which I would not write half a line. If someone asked me whether it is permitted or forbidden, obviously it is permitted, it is saving a life. Look. Question: "These things I remember and pour out my soul within me," for in the days of those accursed villains we had no hope, and every single day more than a thousand people would leave the ghetto in order to be worked to the bone at the airport and tormented in their suffering. And one of my dear students came before me—may God avenge his blood—with this request on his lips: since he had the opportunity to get work in the kitchen, in the place where the black soup was cooked, made from beans, which the Germans distributed to the Jews together with one hundred grams of bread a day, however there was one catch: there he would be forced and compelled to work in the act of cooking even on the Sabbath. Is it permitted to cook on the Sabbath because this will save him—otherwise he will die—and we see that he—

[Speaker B] Dies of hunger, because that was the reality.

[Rabbi Michael Abraham] The question is whether he may work in the kitchen in the ghetto for the sake of that one hundred grams of bread and bean soup, because he will have to cook there on the Sabbath. But since in that way he will be saved from the harsh forced labor at the airport, which destroys the soul and breaks the body, perhaps this too involves saving a life. For since he will be saved from hard and exhausting labor, he will be able to eat and satisfy his hungry soul with as much of the black soup as he desires—for someone who works in the kitchen can of course take more—and his body will thereby become stronger, so that he can hold out and not be overcome by the general hunger, and not only for that one day; if he eats more it strengthens him for other days in the siege of the ghetto. And he further asks whether he himself may eat on the Sabbath from the black soup that he cooks on the Sabbath under the law of food produced by Sabbath violation. Well, on the face of it, if I stopped here I would say: listen, don’t annoy me. Obviously it is permitted. What is the question? It is saving a life. Do it. It is a commandment—not just permitted, you are forbidden not to do it. Right? Now look: a whole responsum, two pages side by side, two pages with all the laws of food produced by Sabbath violation and camps here and camps there, and what exactly is permitted and what is forbidden. Look. Responsum: In Chullin 15a we have: We learned in a Mishnah: one who cooks on the Sabbath unintentionally may eat it, but if intentionally he may not eat it—these are the words of Rabbi Meir. He starts talking about food produced by Sabbath violation, as if he doesn’t know we’re in the Holocaust. Rabbi Yehuda says: if unintentionally, it may be eaten after the Sabbath; if intentionally, it may never be eaten. Rabbi Yochanan HaSandlar says: if unintentionally, it may be eaten after the Sabbath by others but not by him; if intentionally, it may never be eaten, neither by him nor by others. Yes, a three-way dispute among the tannaim about food produced by Sabbath violation. And Maimonides, chapter 6 of the laws of Sabbath, law 23, ruled: A Jew who performed prohibited labor on the Sabbath—if he transgressed and did it intentionally, it is forbidden for him to benefit from that labor forever, but other Jews may benefit from it immediately after the Sabbath, as it says: "You shall keep the Sabbath, for it is holy to you"—it is holy, but what is produced by it is not holy. How so? If a Jew cooked on the Sabbath intentionally, others may eat it after the Sabbath, but he himself may never eat it. And if he cooked unintentionally, after the Sabbath it may be eaten immediately both by him and by others. Maimonides ruled like Rabbi Yehuda. But the Tur in section 318 ruled in the name of the Rivash that nevertheless, if it was unintentional, it is permitted even to him on that very day, and if intentional it is forbidden on that day even to others, but in the evening it is permitted even to him—that is, he ruled like Rabbi Meir. And Nachmanides decided like Maimonides, and so ruled the Geonim, and that is also how the Shulchan Arukh ruled. See there in section 318, where it says: one who cooks on the Sabbath intentionally—it is forbidden to him forever, and to others it is permitted immediately after the Sabbath; and if unintentionally, it is forbidden that day even to others. Now all these great authorities do not even mention forbidding it for the amount of time it would take to do it. There is a question whether in food produced by Sabbath violation one has to wait the time it takes to cook—so that it could have been done after the Sabbath. There are several explanations for this. The simple explanation is: why do you wait that amount of time? Because if you do not wait, then you are benefiting from Sabbath violation. If you wait that amount of time, then you did not benefit from the fact that it was done on the Sabbath. After all, you could have done it after the Sabbath, and by that same time you already could have eaten it even without having cooked on the Sabbath; so that is not called benefiting from Sabbath violation. Okay? As it says there under the opening words "Rabbi Yehuda says: if unintentionally, it may be eaten after the Sabbath and not on the Sabbath," and the same applies to others, even though in the case of unintentional action there is no liability to stoning, there is still a transgression, and we require the time it would take to do it so that one not come to benefit from a transgression, so that one not benefit from transgression, as we discussed. And in Bava Kamma 71a it says that this reason of Rabbi Yochanan HaSandlar is as he expounded at the entrance of the house of the Nasi: "You shall keep the Sabbath, for it is holy to you"—just as holy things are forbidden for eating, so too what is produced by the Sabbath is forbidden for eating. If holy things are forbidden for benefit, perhaps what is produced by the Sabbath is likewise forbidden for benefit. Therefore it says: "to you"—it shall be yours. One might have thought this applies even if it was done unintentionally; therefore it says: "Whoever desecrates it shall surely be put to death"—I told you that only in the intentional case, not the unintentional. Rav Acha and Ravina disagree: one says that food produced by Sabbath violation is of Torah origin, and one says it is rabbinic. The one who says it is of Torah origin follows the derivation we mentioned, and the one who says it is rabbinic says: the verse says, "It is holy"—it is holy, but what is produced by it is not holy.

[Speaker B] Whether Torah-level or rabbinic, still—

[Rabbi Michael Abraham] And the Ritva on tractate Ketubot 34 wrote: when Rav Yehuda said that if done intentionally he may never eat it, that means that he himself may not eat it, because no one prohibits food produced by Sabbath violation to the whole world except Rabbi Yochanan HaSandlar alone, as stated in our discussion. So you find yourself saying that the unintentional case according to Rabbi Yehuda is like the intentional case according to Rabbi Meir, and the unintentional case according to Rabbi Yochanan HaSandlar is like the intentional case according to Rabbi Yehuda. And we say: regarding food produced by Sabbath violation Rav Acha and Ravina disagree—and all the details don’t matter to me here, so I’m just skimming the citation from the discussion, yes? Therefore our passage proves explicitly that Rabbi Yochanan HaSandlar is the one about whom they disagree, for he said food produced by Sabbath violation… but one should not understand from here that the law follows him. And we say in the first chapter of Chullin that Rav ruled publicly like Rabbi Meir and lectured in the study session like Rabbi Yehuda. Yes? In conceptual analysis he learned like Rabbi Yehuda, and when people asked him for practical law he ruled like Rabbi Meir. A nice hint about the yeshiva world from the Torah. And who is greater than Rav to issue practical rulings? And if because our passage here has them disagreeing according to Rabbi Yochanan and according to his reasoning, and because he wanted to raise a challenge, perhaps even according to the one who says food produced by Sabbath violation is rabbinic he too brings the tannaitic source explicitly, but the law is not like him. It is stated clearly and simply in the words of the Ritva that in his view Rabbi Meir and Rabbi Yehuda both hold that there is no everlasting prohibition on food produced by Sabbath violation. That was the point—to prove it from the Ritva. It does not matter right now. According to both Rabbi Meir and Rabbi Yehuda, the prohibition of food produced by Sabbath violation is not forever, but only until after the Sabbath. And Rav Acha and Ravina too disagree only according to Rabbi Yochanan HaSandlar, but according to them they do not hold like him that food produced by Sabbath violation is forbidden forever. And in the glosses—in the gloss on section 318, in Hagahot Asheri, subparagraph 2—I saw that he wrote as follows: one for whom it was cooked has the same law as the person himself, as written in Yoreh De'ah section 99 regarding one who intentionally nullified a prohibition, that it is forbidden both to him and to the one for whom it was done; here too the reason is because of a penalty. But from the words of the Beit Yosef it seems that specifically there we worry that he may tell a non-Jew to nullify it, but here in any event he must wait the time it would take to do it; when a non-Jew cooked for a Jew, we are not concerned, because if he has to wait the time it would take to do it, then he will not tell someone else to cook for him—he would have to wait anyway, so what does he gain from someone else cooking? Fine? We thus return to our case. In any event, it emerges from this that one should forbid cooking on the Sabbath for the sake of a Jew, and the one for whom it was cooked has the same law as the person himself. And all the Jews for whom I cooked—if I am doing general cooking—their law is like that person’s own law. Fine? As the Magen Avraham wrote. If so, in our case at first glance one should forbid him to cook, and if he transgresses and cooks, the food will be forbidden to Jews. And since all the cooking work in this kitchen is for the Jews who are in distress and captivity and in this war—absurd. And also in the book Ohel Yosef on tractate Sabbath 79 it is written that if a person is coerced to choose one thing—either desecrate the Sabbath or eat forbidden food, carrion—he should choose desecration of the Sabbath. And desecration of the Sabbath under coercion is labor not needed for its own sake, which is only rabbinic, whereas if he eats carrion he transgresses a Torah prohibition, because only with Sabbath labors is there an exemption for labor not needed for its own sake, but not with prohibitions of carrion, for he benefits from that eating. Yes, this is related to everything the medieval authorities say about slaughtering for a sick person and the rule that it is better to slaughter. Better to feed him carrion? It is a similar discussion. And he further brings there, in Rosh Yosef, that the Penei Yehoshua disputes the words of Tosafot there, who wrote that one who acts on the Sabbath because of suffering is liable, and in the Penei Yehoshua's view, acting because of suffering and the like counts as labor not needed for its own sake. Therefore he brings what the Maharsha wrote there regarding the gatherer of wood—that he intended it for the sake of Heaven. Such as the well-known Tosafot that brings this midrash, that the gatherer intended it for the sake of Heaven—so why did Moses kill him? Behold, it was labor not needed for its own sake. He did not gather wood because he needed the wood, but in order to teach Israel that "those who desecrate it shall surely be put to death." So it was labor not needed for its own sake—why then did Moses kill him? The answer is that Moses of course did not know; if Moses had known, he would not have succeeded in teaching Israel that those who desecrate it shall surely be put to death. Fine, these are Tosafot-style dialectics. And on the basis of these words of the Rosh Yosef, the Maharsham wrote in Orach Chayim, in the laws of Sabbath, that one can find justification for Jewish soldiers, in that their labor is only rabbinic, since they act under coercion. So everything they do is labor not needed for its own sake, and if so it is only a rabbinic prohibition. Obviously with us as well it is so: people under coercion whom they force to cook on the Sabbath—since it is under coercion, and it is labor not needed for its own sake, it is only a rabbinic prohibition. Now one has to discuss food produced by Sabbath violation when the underlying prohibition is rabbinic. Okay, notice this, yes? It is very… And he brings here from the words of the Maharik, who wrote in responsum 137.

[Speaker C] There it wasn’t necessary that he actually did want it? There it wasn’t necessary that he did want it, so what then?

[Rabbi Michael Abraham] Ah, from the Jerusalem Talmud, that coercion is permitted, as it is explicit at the beginning of tractate Ketubot. So the later authorities infer from there, the Penei Yehoshua and all of them: what happens with coercion and desire? If they coerce me to do something that I wanted to do anyway? There are many opinions there that it is still coercion.

[Speaker B] It is still coercion.

[Speaker C] It is still coercion—what do you mean?

[Rabbi Michael Abraham] So what if I want it? But I would have had to do it—

[Speaker C] In any case. So I want it—so what? Yes, but to put it into the category of—

[Rabbi Michael Abraham] And more than that, labor—

[Speaker C] Not needed for its own sake because he doesn’t benefit? I do benefit.

[Rabbi Michael Abraham] No. Labor not needed for its own sake is not because I don’t benefit. Labor not needed for its own sake is because I did not do the labor for that purpose. Those are two different things. I did it because I was coerced; that has nothing to do with benefit. Labor not needed for its own sake has nothing to do with benefit. And with unintentional action there are cases where one does benefit—that’s the discussion of food, peppers, and forbidden sexual relations; that is a different discussion. Different discussion. Also with unintentional action it is not because of benefit, but there there is the principle of benefiting in the discussion of food, peppers, and forbidden sexual relations. Fine. So the question is whether this is a rabbinic prohibition or not a rabbinic prohibition, and he begins to discuss it. One can apparently infer against this from the Jerusalem Talmud: in a time of decrees, when they decreed against the Jews—by the way, there is also Maimonides’ distinction here, that one who eats… Maimonides, in the laws of the foundations of the Torah, chapter 5, distinguishes between sick people and people under coercion. If you do something because of coercion, then you are coerced; but if you do it because of illness, that is not called coercion. So is this coercion? It is puzzling. No, that is called voluntary. He does not bring this in here. Fine, there would have been room to discuss Maimonides’ distinction here too. Well then, there, in a time of decrees, when they decreed against the Jews to desecrate the Sabbath, and the non-Jews loaded burdens onto them on the Sabbath, the clever Jews arranged matters so that two people would carry one burden in order to be exempt. Why did they do that? Behold, they were being coerced, and in any case it is labor not needed for its own sake. They did not need to make it a case of two people doing one act; it is only a rabbinic prohibition anyway. So that would seem to be evidence against the Maharik and all that group. And now you may well wonder: if labor not needed for its own sake applies when idolaters force him to desecrate the Sabbath, then the difficulty returns to its place—why did the Jews need this arrangement that two should carry it? Yes, I’m moving to the next paragraph. And therefore, in short, just get a sense of the level of detail he enters into. From this one can say that those Jews refined their actions so as not to transgress a Torah prohibition according to everyone. It may be that they did this in order not to transgress according to everyone, even according to the view that obligates in labor not needed for its own sake—Rabbi Yehuda—for Maimonides after all rules like him. Maimonides rules like Rabbi Yehuda on labor not needed for its own sake, even though most decisors do not, but Maimonides does. Fine. So they did it in order to satisfy all opinions. Okay, that is a nice dialectical point. If so, then the words of the Jerusalem Talmud fit nicely—that the Jews intentionally arranged things and so on. I move to the next paragraph. And according to this, in our case, he says… and according to this, in our case, where those accursed villains forced the Jews to perform all sorts of hard labor on the Sabbath, and if they did not obey they would kill them in all sorts of deaths and tortures, then certainly this coercion is coercion involving death, and certainly those wretched people may desecrate the Sabbath, because the Merciful One exempts one who acts under coercion. That is regarding the very act of doing the work, the act of doing the labor itself—it is coercion. Fine. And beyond that, all the more so since here there is actual danger to life. And even more than this I saw in the responsa Yad Shalom, where he wrote regarding one who is compelled by the government to desecrate the Sabbath by a Torah prohibition, that one can incline to permit it on the basis of what the Maharik wrote. An enormous novelty. That is, if the government forces you to work on the Sabbath, and you work because of the government—not because of mortal danger, but ordinary livelihood pressure, because that is the definition of the job. You work in a labor setting where the definition is that one works on the Sabbath too; the factory owner defined it that way; he wants the factory to operate on the Sabbath too, and legally that is allowed. Okay? So says the… who is this authority? Maharik? Yad Shalom—I don’t know who he is. So he says: no, it doesn’t matter, in my opinion. He said it does not matter. Certainly you are doing labor not needed for its own sake, because you are doing it for the government, not because you want to. Labor not needed for its own sake is only a rabbinic prohibition. Coercion here is… there is definitely room for this reasoning; it is amazing. And if so, all the more so in a place of terrible degradation that consumes lives there—not like with us where only the government says so—yes?—that it should be permitted for them to desecrate the Sabbath. So that is regarding the act of cooking itself. What about food produced by Sabbath violation—benefiting from the result? Returning to the practical law: from all this it seems that one should permit them to work at the labor of cooking on the Sabbath in the kitchen. For in such a case, if the Nazis forced him to work at forced labor in Dachau on the Sabbath, in any case he has to work. What difference does it make whether he works here or there? Desecration of the Sabbath is desecration of the Sabbath. If so, what practical difference is there as to which job he will be forced to desecrate the Sabbath in—some other work or the labor of cooking? In such a case he will not transgress a Torah prohibition, and since what he desecrated of the Sabbath was under coercion, it is labor not needed for its own sake, and is prohibited only rabbinically. And if it were Torah-level, so what? What—punishment? Is it forbidden to work? It is Torah-level labor, so what? In a life-threatening situation it is completely permitted. And he says: no, this is rabbinic labor. He says that—don’t you hear the whole dialectic? Don’t you hear the whole dialectic? That maybe, maybe in Dachau it was not even a Torah prohibition. What? No, apparently there too it was a Torah prohibition, because he says, what difference is this or that? So what is all this dialectic for? Therefore it certainly appears permitted to work in the labor of cooking on the Sabbath, because by doing so he will also have a bit of food to restore his soul, and therefore there is no prohibition at all on his eating the soup cooked on the Sabbath. Why? Because in such a case, according to everyone, food produced by Sabbath violation is not forbidden, since this eating involves saving a life. And all the more so it is permitted for other Jews to eat the soup cooked on the Sabbath for the same reason, for saving life overrides the Sabbath. Because the forces of evil are keeping us here in utter darkness, in real hunger and siege, therefore it is certainly permitted for them to restore their starving souls with this soup cooked on the Sabbath. And may the good God save us from errors, and say to the destroyer: enough. That is, God forbid, perhaps he erred in this ruling. And bring us out from darkness to light. I have never encountered a more trivial ruling than this.

[Speaker C] Wait, but is he talking about—

[Rabbi Michael Abraham] About the possibility that he erred in the ruling.

[Speaker C] I mean about the Sabbath itself, or that they have to wait until after the Sabbath?

[Rabbi Michael Abraham] No, it is saving a life, so certainly it is—

[Speaker C] Even on the Sabbath itself.

[Rabbi Michael Abraham] Yes, he doesn’t even come back to that. You understand? Yes—it is so funny. He spent three quarters of the responsum on food produced by Sabbath violation, right? Then he moved to this rabbinic prohibition, labor not needed for its own sake, and then he says they may work because it is only a rabbinic prohibition and saving a life, and so on. But what about food produced by Sabbath violation? Did you forget to discuss that? What about food produced by Sabbath violation? What, it is saving a life—then food produced by Sabbath violation is permitted. So why did you spend three quarters of the responsum discussing food produced by Sabbath violation, rabbinic, Torah-level, Rabbi Meir, Rabbi Yehuda? Why did you do all that? This whole responsum is bizarre. But why is it bizarre? One has to understand the idea, and I am not belittling it; I am trying to explain. Here the point is exactly the opposite of what we saw last time, and it is an opposite angle on the same phenomenon. When you look from outside, the misunderstanding can go in two directions. The misunderstanding can be like that fellow in Yated Ne’eman, namely—

[Speaker B] It doesn’t fit with the rules you are used to, that there is no ownership in the ghetto.

[Rabbi Michael Abraham] How can you think there is ownership in the ghetto? What kind of thing are you trying to produce here? You don’t understand the leniency made by someone inside the situation. Here they do not understand the stringency made by someone inside the situation. Understand: someone inside this situation—this was his life. He lived there for years. For years they lived that way. We look at it as a bizarre situation, but they lived whole lives that way. What do I mean whole lives? A year is a long time. A year is a very long time—to go back over a year. Say a year or two or whatever it was. For two years they lived like that; that was their reality. They discussed the laws of Sabbath the way we discuss them today. Even though it sounds bizarre. He understands that there is danger to life in the background, but he does not see it in the same way we see it—and this time, toward stringency. And when we look from outside, from our perspective you are in an inferno—what are you talking about? It is saving a life! What else is there to discuss here about food produced by Sabbath violation? He says: no. He is there. That is his life. True, a hard life—but it is life.

[Speaker C] Their whole life is like that.

[Rabbi Michael Abraham] Yes, exactly. So what then? Should we not observe Jewish law at all? This is our life. So he conducts a halakhic discussion, which again, it’s not entirely like that. So I’ll add one more explanation that only complements this explanation; it’s not really another explanation. Obviously he also has some interest in preserving halakhic normalcy. Meaning, if every question people ask you is answered with “saving a life—everything is permitted,” then from that point on they simply won’t come ask anymore. After all, everyone will violate the entire Torah, because in a case of saving a life everything is permitted. Now, that seems to him like something—despite the fact that it’s true. You don’t need to ask anything. The one who asks is blameworthy. Fine, that really is halakhically true, but when a life-threatening situation goes on for years, then the rabbis who are inside the situation understand that it is not right to bypass Jewish law like that. Come ask every question and receive a detailed halakhic answer. In the end it will of course be permitted, but I’ll go through an entire pilpul with you to explain why it is permitted, even though it’s nonsense, because in the end the answer is: saving a life. But it’s important to me to go through the pilpul so that you understand that Jewish law continues with us. Jewish law continues with us even when we are here, and in principle we could have thrown the entire Shulchan Arukh in the trash. It’s not relevant—do whatever you can to survive. No. And someone who is inside knows that that’s not true. And with you there’s always this feeling that someone who is inside the situation should be stringent rather than lenient. Really? Stringent rather than lenient? I gave the example of Rabbi Aronson, also in the ghetto, in that same ghetto, who instructed the yeshiva students there to be careful not to eat legumes on Passover. Unbelievable. Why? Because this is literally a matter of danger to life. He was aware of that; he wrote it explicitly. Why? Because what—will we die if we eat legumes or if we don’t eat legumes? Maybe the merit of being stringent about legumes will help us, so that the Holy One, blessed be He, will save us. So the concern for saving life told him specifically to be stringent about legumes, when the simple Jewish law, if you ask someone from outside—not from inside the situation—would be: eat everything, of course. Eat pork and legumes together, cook them together in milk. Pork in milk—that addition is mine, but never mind. Do whatever you want; Yom Kippur that falls on the Sabbath—it’s saving a life. But it’s not like that. Sometimes there is a situation where from the outside you can make that kind of mistake. You can err because you don’t understand the depth of the problem, and then you’ll be stringent. And sometimes you fail to understand that this is life itself. You understand the depth of the problem too well; you relate to it like someone who is in such a situation for an hour, where indeed the laws of saving a life apply, and after an hour he goes back to regular life. But if it’s years of such a situation—this is our life. Think of us as having fallen into—we are inside the falling elevator with the fire, and that elevator is falling from the Empire State Building, and it takes something like a year to fall. And then it’s not so simple that I’m allowed to take the pen from that one. Theft, robbery—that’s all true, everything’s fine, but I have a year that I need to live like this, or five years, or I don’t know how long. All right? So as long as you’re not inside the situation, you don’t know how to judge it. It can be judged this way, and it can be judged the exact opposite way. And both of those analyses can be correct. Who decides? The person who is inside the situation. The one who understands what this means, who feels it in his bones. It’s not enough to know the entire Shulchan Arukh—that’s not the point. You have to understand what the things mean, what their significance is, how they are perceived, how we experience them. That is really what this says. And here you can take it in both directions, because the fact that you experience the thing—I spoke about this in the last post with the two Rabbi Elyashivs,

[Speaker C] Rabbi Elyashiv who was connected, and Rabbi Elyashiv who was disconnected.

[Rabbi Michael Abraham] Right, it’s really connected to this issue. Really connected to this issue. Because there truly are two considerations here, and both are valid. Should a halakhic decisor be detached from the situation, or should a halakhic decisor be inside the situation? Because there are arguments in both directions. It’s not simple. Even though I presented the other side, the first side is also a valid side. Someone who is inside the situation is biased. He sees things from the gut as well, not only from the head. Meaning, it’s hard for him, there are costs, there are interests, there are implications, consequences, results. It may be that you are biased in your judgment. Someone looking from the outside can give you a more balanced perspective. And there is value in someone who is specifically detached from life, or detached from the situation under discussion, and gives his view and tries to make a clean judgment. Okay? On the other hand, as I said before, there is of course added value in someone who understands what the situation means, who lives it. So first of all, of course, it depends on how extreme the situation is. If it is very extreme, then someone detached from it will say, “What do you want?” But clearly this is the model of what is called the Council of Torah Sages. What is the Council of Torah Sages? That’s the idea there. In contrast, say, to the National Religious Party, where the Knesset members themselves also made the decisions—at least that used to be the case—they themselves also made the decisions; there wasn’t some council of rabbis alongside them telling them what they had to do. But among the Haredim there is the Council of Torah Sages. What is the idea behind that? There is a great deal to it. Because the Knesset members will make biased decisions—according to interests, according to status, according to how it looks, according to all sorts of things like that. By contrast, someone whose fate does not depend on the issue weighs it on its own merits, makes a cool-headed judgment about what is right to do, and makes much better decisions. Of course—provided that he is completely familiar with the details and consults, and truly understands what the facts mean. Meaning, you have to know the reality, but precisely there the decision is really handed over to the council of rabbis, or whoever it may be, and not to a member of Knesset. The Knesset members should describe the situation, explain the implications, and afterward the rabbis decide. That is actually a correct model. And therefore it really depends very, very much on how distant the situation is, to what extent the situation will bias you, and whether it creates distortions or instead creates misunderstanding from outside the situation. The situation can do two things: if you are inside the situation, you also understand it better; on the other hand, you are also biased because of things that are not relevant. It’s very subtle. Therefore I think that as a general principle I would say that halakhic ruling, if there is time for it—and in extreme cases there isn’t always time or possibility for it—should really be reached through some kind of dialogue. So in the end, the person inside the situation should ask the one outside the situation,

[Speaker C] And the person outside the situation.

[Rabbi Michael Abraham] Okay, but if he were the one cooking, then it would be appropriate to go

[Speaker C] to someone, or

[Rabbi Michael Abraham] in general to go to someone who is simply outside the personal stake, if possible. Okay? But I’m speaking on the principled level: it should be some kind of consultation. Say it’s a young rabbi of a young community on an egalitarian issue, where these are less extreme examples. Okay, if you go to some Haredi rabbi, or an older rabbi, or someone who doesn’t know the situation, it’s not right that he should rule for you. On the other hand, you who are inside the situation don’t always see it clearly; you also have your own interest in the matter. So if you go speak with him, he will present the different possibilities to you, show you what considerations are worth taking into account—you will decide in the end. All right? He will critique you, but you will make the final decision. You will consult him because he is a greater Torah scholar, because he will present additional angles, because he is detached from the situation, and so he will present angles you might not have thought of. But in the end I think each side here has some added value, some contribution to this ruling, and one has to be very careful both with a ruling from the inside and with a ruling from the outside. In other words, both are problematic. One really has to be careful; it’s a very fine line, this issue. So in the end, the influence of the situation is, first, real; sometimes it is a blessing, and sometimes it can distort the matter. If I sum up this whole issue of the influence of a situation on opinions: one has to be careful with it. One has to be careful with it, and I think the correct model is some kind of dialogue between those outside and those inside, with both sides aware of the two things: both of the biases that being inside creates and that being outside creates in the opposite direction, and also of the insights that being inside provides and that being outside doesn’t allow you to have. You just don’t have those insights. Okay, when both sides understand these two aspects and speak with each other, I think they can arrive at the best result. I’m closing the parenthesis, because all this was really a parenthesis within this line of thought on Holocaust Remembrance Day. Because from reflecting on dispute and how it arises, I moved into the influence of circumstances on halakhic opinions. We spoke about that in the context of how dispute is created, but it’s no longer really connected to dispute; it’s connected to the question of the relationship between circumstances and halakhic ruling. Next time I’ll return to the subject of dispute, and I hope it will end next time. We’ll speak about two aspects. One aspect is disagreement about reality. The accepted halakhic view somehow is that there is no disagreement about reality; under critical examination there is certainly disagreement about reality. And the second question is disputes in the social sense—“whoever maintains a dispute violates a prohibition”—that is, disputes in the bad sense, like Korach and all his congregation. We’ll talk about that next time.